MML#7  Livonia Chief Assistant Attorney Shares Insights on Marijuana Regulation
(Crystal A. Proxmire, Oct. 9, 2016)
Mackinac Island, MI – Communities across the state are trying to stay abreast of how the Medical Marijuana Act and subsequent case law and legislation impacts them.  Some officials welcome the efforts to cultivate medical marijuana based businesses, others do not want them at all, while many are simply trying to navigate whatever circumstances come their way based on what the law allows.
For those who want to prevent or control the influx of medical marijuana dispensaries in their communities, Michael E. Fisher’s presentation at the Michigan Municipal League’s conference may have given some inspiring ideas.
Fisher is the Chief Assistant City Attorney for Livonia, a community that was sued by the ACLU on behalf of a medical marijuana cardholder who feared they would be arrested for marijuana.  The ACLU sued Birmingham, Bloomfield Hills and Livonia. The lawsuits were dismissed because they dealt with a hypothetical situation, not one that had actually happened yet.  Had the plaintiff been arrested, the case could have proceeded.  In Feb. 2014 the ACLU won a case against the City of Wyoming, with the Supreme Court ruling that municipalities could not pass local ordinances contrary to the MMA.
Fisher said that his interest is not in preventing people from smoking pot.  “I’m here for autonomy – our ability to do what we want in our cities,” he said.
His take-away from the Livonia fight was that while outright prohibition may not be permissible, zoning can be used to deter businesses from opening that sell marijuana.
Fisher said that zoning “is very flexible compared to outright prohibition.”
He explained that while laws get challenged through the court system, matters of zoning have to go through a Zoning Board of Appeal before there is a court case, and the standards of upholding a zoning decision are easier met than in a court case over an ordinance.  “Generally speaking, not always, you have to go to a ZBA before you go to court. Often the ZBA will resolve the issue. Courts have declared zoning a compelling interest. When you’re charged in court they’re fighting a compelling interest,” he said.
Zoning violations do not equate to criminal charges. “If I’m walking down the street smoking a doob, I’m guilty of archaic slang, but not of a zoning violation,” he said. “If I’m driving with a joint in my car, I’m not violating zoning.”  He added that police can still charge those who are caught with marijuana with the federal laws banning it.
Also, Fisher noted, while there is an effort to get enough signatures to put marijuana legalization on the ballot, it won’t be on the ballot this year.
At the time of the conference (Sept. 15) there was legislation working its way through the State House and Senate to regulate medical marijuana, that has since been signed into law.  The law gives cities flexibility in restricting locations and allows them to charge fees.
“The cool thing is this has a municipal buy-in.  You cannot open in a community that does not want marijuana,” Fisher said.  “You can anticipate feverish lobbying of your city councils for zoning.”
Fisher also noted that the legislation pertains to businesses, not caregivers or patients – commercial space, not homes.
The Michigan Municipal League has posted a one-pager about the new regulations at http://www.mml.org/resources/publications/one_pagers/opp_med_marihuana_%20facilities_%20licensing.pdf.
The Michigan Municipal League is dedicated to making Michigan’s communities better by thoughtfully innovating programs, energetically connecting ideas and people, actively serving members with resources and services, and passionately inspiring positive change for Michigan’s greatest centers of potential: its communities. The MML has supported the oc115 with a scholarship to the conference.  Learn more about MML www.mml.org.
To be notified of future articles, sign up for daily headlines at https://feedburner.google.com/fb/a/mailverify?uri=Oakland_County_115_News.